Laryea, Joseph v Minister for Immgration and Multicultural Affairs

[1998] FCA 700

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 18  of   1998

BETWEEN:	JOSEPH LARYEA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		O'CONNOR J
DATE OF ORDER:		18 JUNE 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 18 of 1998

BETWEEN:	JOSEPH LARYEA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O'CONNOR J
DATE:	18 JUNE 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HER HONOUR: This is an application for the review of a decision of a member of the Refugee Review Tribunal (“the Tribunal”) dated 23 December 1997 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

The grounds of the amended application are:

1. that the Tribunal erred in law by failing to observe procedures that were required by the Migration Act 1958 (the Migration Act) and Migration Regulations;

1. that the Tribunal erred in law, being an error involving an incorrect interpretation of the applicable law and/or an incorrect application of the law to the facts as found by the Tribunal;

1. that the Tribunal erred in law in that there was no evidence or other material to justify the making of the decision; and

The applicant seeks an order that the decision under review be set aside and that the matter be remitted to the Refugee Review Tribunal to be heard and determined according to law.

Legislative Context
The relevant provisions of the Migration Act in respect of this application are as follows:

“Refugee Review Tribunal’s way of operating

420.  (1)  The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)  The Tribunal, in reviewing a decision:

(a)      is not bound by technicalities, legal forms or rules of evidence; and

(b)      must act according to substantial justice and the merits of the case.

...

Application for review

476.  (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(d)that the decision was an improper exercise of the power conferred by the Act or the regulations;

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

...

(g)that there was no evidence or other material to justify the making of the decision.

(2)  The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.

...

(4)  The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)the person who made the decision was required by law to reach that  decision only if a particular matter was established, and there was no evidence or other material (including fact of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

Factual Background

The applicant is a 34 year old national of Ghana.  He has a wife, son and two daughters who remain in Ghana.  He obtained technical/electrical qualifications in 1988 and then worked in Ghana from 1990 to 1996.  The applicant joined the People’s Convention Party (PCP) soon after it was formed in 1993.  As a member, he did not experience any problems in relation to his involvement with the PCP.

On 16 January 1997 the applicant said he was in a clubhouse talking to others about the corruption and abuses of the government administration when he was approached by two armed commandos who slapped him and “drilled” him and took him away for interrogation.  As the two commandos led the applicant away they stopped to talk to others when the applicant took the opportunity to escape by kicking one in the groin and poking the other in the eye.  The applicant said the commandos were not able to retaliate at all, because they were in pain.

The applicant then, with the assistance of his family, moved to various parts of Ghana before crossing the border to Togo.  The applicant claims he received news that the commandos assaulted his wife, ransacked his room and took his pictures and vowed to kill him.  In fear, his wife moved to her mother’s house in another part of Ghana.

The applicant said that, with the assistance of a friend, he obtained travel documents and passports which he used to travel to Australia arriving on 15 October 1997.

The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 20 October 1997.  The delegate’s decision refusing the application was made on 29 October 1997.  The applicant applied for a review of that decision by the RRT on 5 November 1997.  The application for review was rejected by the RRT and his application for protection visa refused on 23 December 1997.

Tribunal’s Decision
The Tribunal made the following findings:

In relation to the applicant’s evidence, the Tribunal found his account of events implausible.  The Tribunal did not find it credible that he, unarmed and on his own, would have been able to completely foil and escape from two men who were armed and depicted in his own evidence as “brutal torturers without regard for the law”.  The Tribunal was therefore not satisfied that his claims were truthful and that he did not have a well founded fear of persecution within the meaning of the Convention.

The Tribunal also found that there did not exist, in this case (even if the account given by the applicant were true), a real chance that the applicant would be persecuted on return in the reasonable future to Ghana because of a Convention reason.  The Tribunal did not accept the applicant’s nor his friend’s depiction of the political situation in Ghana which insinuated that systematic and violent repression of political opposition continues to the present.  The Tribunal preferred the reports of independent monitoring bodies indicating that Ghana’s multi-party democracy allows for free expression of political opposition.  The Tribunal found that the applicant’s own evidence supported this conclusion as he had not been subject to any adverse treatment by the Ghanaian authorities on account of his active membership of an opposition political party since 1993.

In relation to the applicant’s evidence that the commandos may have an interest in exacting revenge on him, the Tribunal found that if he had believed the story told by the applicant, their motives to harm him in the reasonably foreseeable future would not be Convention-related but rather would be motivated by a personal desire to exact revenge for the assault.

The Tribunal also found the circumstances of the alleged incident to be highly localised.  The chances of the commandos pursuing the applicant throughout Ghana on account of his criticisms of the government are remote and the chances of the Ghanaian national authorities arresting and persecuting him at the airport on return on account of those remarks are equally remote.  In the circumstances, the Tribunal was satisfied that a viable and reasonable option for the applicant would be to relocate to another part of Ghana

The Tribunal concluded:

“Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations ...”.

Submissions of the Parties
The applicant made the following submissions.

1. In relation to the first ground of appeal, under s 476(1)(a), the applicant submitted that the Tribunal failed to act according to substantial justice and the merits of the case as required by s 420(2)(b) of the Migration Act and failed to apply procedures which were fair.  The fact that the application was dealt with in a relatively short time frame meant that the applicant did not have an opportunity to place before the Tribunal information as to the activities of the commandos in Ghana or any evidence as to whether the proposal to relocate within Ghana was reasonable.  The applicant attempted at the hearing to tender newspaper articles in support of this submission.  The tender was rejected as being irrelevant to the task of judicial review.

The applicant submitted that the reasons for decision of the Tribunal are not coherent or logical and purport to justify conclusions which cannot be justified on the evidence.

In assessing the credibility of the applicant the Tribunal failed to make full enquiries and take proper account of independent country information and was selective in its use of such information.  Further, the Tribunal failed to give the applicant the benefit of the doubt in relation to the circumstances of his escape from the commandos and failed to properly allow for the inherent difficulty in proving the circumstances of that escape.

In summary the applicant submitted that the Tribunal failed to provide a comprehensive merits review of the application and that the decision of the Tribunal did not give “any confidence” that the Tribunal understood the powers and functions it was to exercise or the law it was to apply.  As such it did not follow the procedures required by s 420 of the Act and so had made an error of law.

1. In relation to the second ground of appeal the applicant submitted that the Tribunal failed to understand the meaning of the phrase “well founded fear of persecution” and failed to properly apply the appropriate tests.

The applicant also submitted that the Tribunal failed to understand and apply the law relating to “internal flight” in finding that the applicant could escape persecution by residing in a different part of Ghana if he returned there.  The Tribunal made the finding that an alternative home is available in Ghana for the applicant without, it was submitted,  any evidence to support that finding and in spite of contrary evidence before it.  The Tribunal did not, it was submitted, dispute that the applicant was taken into custody by the commandos because of his expression of political opinion.  Nor did it dispute that he escaped or that he is likely to suffer persecution on his return to Ghana.  Nevertheless the Tribunal concluded that it would be safe for the applicant to return.

The applicant further submitted that in determining whether the applicant had a “well founded fear of persecution”, the Tribunal failed to ask and answer the proper question which was whether the applicant had left Ghana because of his fear of persecution for his political opinions and whether he feared return for that reason and whether those fears are well founded.  The Tribunal failed to identify the applicant’s strong subjective fears which were relevant to its determinations and there was no evidence on which the Tribunal could base its conclusions that the applicant’s fear of persecution had changed.

1. In relation to the third ground of appeal, the applicant submitted that the Tribunal finding that the commandos would seek out the applicant on his return to Ghana for motives of revenge rather than for political opinion, was not based on any evidence.  The applicant claims that the Tribunal did not believe his version of his escape from the commandos and therefore there was no cause for a presumption of a motive for revenge.

The applicant submitted the Tribunal’s findings that he was not followed when he moved around Ghana, that he could re-locate with the support of his relatives and that his arrest was highly localised, is not founded on or supported by any evidence.

The respondent submitted that none of these submissions show any error of law because the matters raised by the applicant are factual matters.  The Tribunal’s conclusions as to whether there is a Convention reason made out, the respondent submits, flow from the finding on page six of the decision, that the applicant’s evidence was not truthful.  The respondent submitted that the Tribunal acknowledged the difficulties facing asylum seekers and indicated (as was its duty) a preparedness to give the applicant the benefit of the doubt and moreover the Tribunal had the advantage of seeing the applicant give evidence and formed an opinion as to his credibility.

Having come to the conclusion that the applicant’s story was implausible and was not believed the Tribunal then considered an alternative situation which was based on the assumption that the applicant’s account was truthful.  This alternative conclusion was that the applicant’s fear of persecution was not well-founded.  These conclusions were based on its view of the incident, if one accepted it occurred, and its consequences, the assessment of conditions in Ghana and on the practicality of relocation within Ghana for the applicant.

Decision

The applicant based all submissions made in respect of the three grounds of appeal on what the solicitor for applicant described as “the principles enunciated in Eshetu”.  Submissions were made that the review was too quick and that materials should have been independently sought by the Tribunal to investigate the conditions in Ghana.

As Davies J said in Festum Habte v Minister for Immigration and Multicultural Affairs, (unreported, 13 November 1997),

“The only function of the Court is to determine whether there was an error of procedure or an error of law in the Refugee Review Tribunal’s decision”.

On a reading of the reasons as a whole, in my view, the applicant’s case has been properly considered by the Tribunal the applicant having been given an opportunity to present his case in an appropriate way.

Therefore the submission that the Tribunal’s reason are not coherent or logical and purport to justify conclusions which cannot be justified in the evidence are not made out.  The Tribunal based its decision on the finding that the applicant’s evidence was not truthful or was implausible.  The Tribunal was entitled to make findings as to the credibility of the applicant and having decided that the story told by applicant was implausible, he was entitled to conclude that the applicant was not a refugee.

The difficulty created in these reasons for decision is that having come to a view about the applicants case, the decision maker then proceeded to hypothesise as to what conclusions would be reached had the applicant’s story been accepted.

The submissions of the applicant are that this approach has caused confusion and contradiction in the reasons and that this amounts to an error of law.

The proper role for the Court conducting such a review was considered in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, when the High Court said that a reviewing court is required to give the language of the decision maker a beneficial construction, without concern for looseness in language, unhappy phrasing or a verbal slip. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. These propositions:

“recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. ... any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision”. (at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ)

The approach of Kirby J to this task of review is considered at pp 291-293 where his Honour relevantly makes the following observations:

• The reasons under challenge must be read as a whole.  They must be considered fairly.  It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.

• The reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review.

• The weight to be given to the material before the decision-maker is reserved to the decision-maker so long as (s)he applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review.  The decision maker will usually have advantages over the reviewing judge in evaluating evidence and submissions.

Applying this approach to these reasons for decision, I consider that, in spite of the awkwardness of language and the unnecessary and prolonged hypothetical assessment of the applicant’s case, if, as was not the case, his story had been accepted as plausible, that the decision maker has made no error warranting review.

The submission that the decision maker had a duty to and failed to make further enquiries as to the situation in Ghana is contrary to the principle enunciated in Immigration and Ethnic Affairs v Singh 144 ALR 284, in which the majority (Black CJ, von Doussa, Sundberg and Mansfield JJ) said at pages 290 to 291:

“Accepting for the purposes of argument that s 420(2)(b) requires a procedure to be observed in connection with the making of a decision within
s 476(1)(a), the question is whether the obligation to act according to substantial justice requires the tribunal to make an inquiry of the nature suggested here.  The way in which the tribunal is required to operate and the powers conferred on it suggest that there may be circumstances in which inquiry by the tribunal will be necessary in order that it discharge its obligation to act according to substantial justice and the merits of the case.  ...

... Section 427(1)(d) empowers the tribunal to require the secretary to arrange for the making of any investigation it thinks necessary with respect to the review, and to furnish a report of that investigation. These provisions show that the tribunal’s role in cases that come before it for review is not a passive one although the circumstances in which the tribunal could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act.”

No such obligation arises in my view in this case.  Moreover, in the context of the hypothetical or “alternative” finding, I consider that the Tribunal applied the principles enunciated in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, in relation to the practicalities of relocation and also made “findings” in relation to the motive for any retaliation by the commandoes which were clearly open on the story told by the applicant.

The application is dismissed with costs.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor

Associate:

Dated:             18 June 1998

Counsel for the Applicant:	M. Linkenbagh
Solicitor for the Applicant:	Houston Dearn O'Connor
Counsel for the Respondent:	P. Brahamn
Solicitor for the Respondent:	A. Pearson, AGS
Date of Hearing:	24 April 1998
Date of Judgment:	18 June 1998